Neely v. Love
| Decision Date | 09 March 1928 |
| Docket Number | 12393. |
| Citation | 142 S.E. 623,144 S.C. 271 |
| Parties | NEELY v. LOVE et al. |
| Court | South Carolina Supreme Court |
On Petition for Rehearing April 12, 1928.
Appeal from Common Pleas Circuit Court of York County; C. C Featherstone, Judge.
Action by Mrs. M. M. Neely against W. A. Love and another. Judgment for defendants, and plaintiff appeals. Affirmed.
The report of the special referee, decree of the circuit court judgment, and exceptions are as follows:
Report of Special Referee.
To the Court of Common Pleas:
Pursuant to an order of the court herein, referring it to me as Special Referee to take the testimony and report my conclusions of law and fact upon the issues made by the pleadings, I submit the following report:
I. Statement of the Issues.
The complaint of Mrs. Martha M. Neely, the plaintiff herein alleges substantially as follows:
(1) That on December 22, 1919, F. P. Love, late of York county executed and delivered to J. S. Brice, attorney, his certain promissory note of that date, in the sum of $2,000, payable with interest at 7 per cent. per annum from December 24, 1919, in installments of $500 and accrued interest on the 24th day of each succeeding December thereafter until paid in full, principal and interest.
(2) That, to secure this note, the said F. P. Love executed and delivered to said J. S. Brice, attorney, his mortgage of same date on two tracts of land in York county, containing 112 and 125 acres, respectively, the same being particularly described in the complaint; that said mortgage contained the customary stipulations as to the payment by the mortgagor of attorney's fees and costs of collection in case of the debt secured being collected by suit or action, or of the mortgage being placed in the hands of an attorney for collection, suit, or foreclosure.
(3) That of the $2,000 covered in said note and mortgage, $1,200 was the money of the plaintiff which J. S. Brice, as attorney, was loaning F. P. Love for plaintiff, and that, in order to secure said equity of plaintiff, J. S. Brice thereafter, on or about the 24th day of December, 1919, by indorsement on said note and mortgage, did assign and transfer the same to the plaintiff, Mrs. Martha M. Neely.
(4) That plaintiff is the legal owner and holder of said note and mortgage. That the condition of said mortgage has been broken, and that there is due the plaintiff on said note and mortgage the sum of $1,200, with interest thereon from December 24, 1919, at 7 per cent. per annum, together with attorney's fees as provided in said mortgage.
(5) The complaint further alleges, upon information and belief: (1) That the defendants Wm. A. Love and A. C. Hargett are in possession of the real estate therein described, and that they claim some interest therein, but that such interest as they may have in the premises is subject to the lien of plaintiff's mortgage covering the same; and (2) that the defendant Mary W. Lee claims a lien on said real estate by reason of a mortgage executed by the defendant A. C. Hargett to A. L. Gaston and by A. L. Gaston assigned to her, but that such lien, if any, is junior to the lien of the plaintiff's mortgage referred to in the complaint.
The prayer of the complaint is: That the court fix the amount due the plaintiff upon the note described therein at $1,200, with interest thereon at 7 per cent. per annum from December 24, 1919, and that a reasonable attorney's fee be added as a part of said debt; that the mortgage described in the complaint be foreclosed, the property sold, and the proceeds, after payment of any and all taxes or assessments thereon and the costs of the action, applied to the payment of the debt secured, the remainder, if any, to be applied according to law, and for such other and further relief as may be just and equitable.
The defendants William A. Love and A. C. Hargett, answering separately, admit that they are in possession of the lands described in the complaint, the same having been subdivided into three tracts designated at tracts A, B, and C, William A. Love being in possession of tract C containing 117 1/2 acres, and A. C. Hargett in possession of tracts A and B, together containing 116 acres.
These defendants allege, in substance: (1) That they are the owners of said lands, having purchased the same from the heirs at law of F. P. Love, deceased, for valuable consideration, and without any notice or knowledge of the claim set up by the plaintiff in her complaint; (2) that J. S. Brice was the attorney of the plaintiff to whom she had intrusted the matters referred to in the complaint, that she is bound by all of his acts in regard thereto, and that the note and mortgage referred to in the complaint were paid in full to J. S. Brice, attorney, in settlement of the debts of the estate of F. P. Love, deceased, by a sale of the lands belonging to his estate to these two defendants in good faith for a valuable consideration; and (3) that plaintiff's claim is unjust, inequitable, and null and void.
The answer of Hargett also admits the execution to Mary W. Lee of the mortgage referred to in the next paragraph, and alleges that the same was made in good faith, and without any notice or knowledge of the claim set forth by the plaintiff in the complaint.
The defendant Mary W. Lee made answer to the complaint, alleging: (1) The execution by the defendant A. C. Hargett of a mortgage upon the tract of 116 acres to A. L. Gaston, attorney, on March 31, 1923; (2) the assignment of said mortgage to her; (3) that the lending of her money was the consideration thereof; (4) that same was executed without any notice or knowledge of the alleged claim of the plaintiff; and (5) that this mortgage is the first and only lien upon said premises.
The defendants, in their respective answers, ask for the dismissal of the complaint, with costs.
Findings of Fact and Conclusions of Law.
Upon the issues thus joined, considerable testimony was taken and documentary evidence presented; the same being herewith filed as a part of the record in his case.
A fundamental fact or circumstance to be considered in deciding the issues in this action is that the claims of the plaintiff and the defendants have the same origin, all being predicated upon, and derived from, the former ownership by F. P. Love of the lands described in the pleadings. The mortgage set up by the plaintiff assumes this ownership, or admits it by necessary implication, and, since the complaint alleges that the defendants William A. Love and A. C. Hargett are in possession, which allegation is admitted by these defendants, it is only necessary for the latter to connect with this common source in order to establish their alleged titles to the property which is the subject-matter of the action.
Other fundamental facts, which enter largely into the matters before me for consideration, are to be found in the documentary evidence which has been presented.
There is no dispute about the fact that the note and mortgage set forth in the complaint were executed as therein stated. Neither of these papers were offered in evidence by the plaintiff, but the note and mortgage were referred to in the testimony of the plaintiff's witnesses and the clerk's record of the mortgage was introduced. The original note and mortgage were introduced by the defendants, and both sides are entitled to the benefit of both papers as evidence.
The note and mortgage bear date of December 22, 1919, and they were made payable to J. S. Brice, attorney, as stated in the complaint. The note shows that two days later, an assignment was executed on the back thereof by the said J. S. Brice, attorney, in language and form as follows:
The body of this assignment is typewritten, but the signature is with pen and ink, and is that of J. S. Brice, attorney. The note shows the cancellation or mutilation of this assignment by the drawing of pen and ink marks through it and through the signature of J. S. Brice, attorney, attached to it, but the markings across the face of the assignment do not destroy its legibility.
Upon this note is also indorsed the following assignment:
Upon the mortgage is the following assignment:
The body of the above assignments to A. L. Gaston, Esq., are typewritten, but the signatures are with pen and ink and are those of J. S. Brice, attorney.
Upon the face of the mortgage appears the following acknowledgment, signed by A. L. Gaston, to wit:
The body of this acknowledgment is typewritten, but the signature is with pen and ink, and is that of A. L. Gaston. It appears duly probated in regular form.
The foregoing acknowledgment, with proof appended, appears of record upon the face of the record of the said mortgage (same book and page) in the office of the clerk and register of mesne conveyances of York county, under date of April 4, 1923.
The F. P. Love note also shows the following memorandum on its face, to wit:
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